315 Mass. 151 | Mass. | 1943
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff while a passenger on the steamship Nantucket owned and operated by the defendant. At the close of the evidence the defendant moved for a directed verdict in its favor. The motion was denied and the defendant excepted to its denial. The jury returned a verdict for the plaintiff.
The evidence would have warranted the jury in finding the following facts: On September 14, 1941, an organization known as the Manhattan Club had chartered the steamship for a special excursion from New Bedford to Provincetown. The club was using the freight deck of the steamer on the day of the accident as a place of amusement, and had set up devices there for the entertainment of the passengers. Corridors, one on the port side and one on the starboard side, lead to and from the freight deck in the bow of the vessel. There is a doorway to each of these corridors, and at the threshold of each there is a water-guard, sometimes called a coaming, eight inches high on the quarter-deck side and eight and one half inches high on the freight deck side. The waterguards are constructed of steel plate about two inches thick and twenty-nine inches long. They were properly constructed and of a kind ordinarily used on steamers of the type of the one involved. They "were not in any way defective.” When the plaintiff boarded the steamer he "got on the quarter-deck.” Later he went to the freight deck, proceeding through the passageway on the starboard side. He remained there for a time and, deciding "to go back,” entered the corridor on the port side of the steamer, and, stumbling over the water-guard, fell and was injured. He had been on "these” steamers on a "good many” prior occasions, and had been through the passageway in question on several trips when it had been necessary to land passengers from the freight deck. He knew of the existence of the waterguards and their location. On the day of the accident, in going to the
The denial of the defendant’s motion for a directed verdict was erroneous. We are of opinion that upon all the evidence a finding was required that the plaintiff’s injury was not due to any failure on the part of the defendant to illuminate the corridor in question sufficiently, as alleged by the plaintiff, but rather was due to his failure to look when, upon his own testimony, if he had looked he would have seen the waterguard, with the existence of which he was familiar. There is no evidence more favorable to the plaintiff in this regard. The defendant was under no duty to warn the plaintiff of the structure with which the plaintiff was familiar and which he could have seen had he looked, but could assume that he would use reasonable care for his own safety. Findings would be required on the evidence that the waterguard was properly incidental to the construction of the steamship and free from defect, that the plaintiff had full knowledge of its existence and location, and that he failed to use reasonable care for his own safety when, had he looked, he could have seen the waterguard:
The defendant’s motion for a directed verdict should have been granted.
, Exceptions sustained.
Judgment for the defendant.